Professional Documents
Culture Documents
Plaintiff
..Defendants
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INTHEHIGHCOURTOFJUDICATUREATBOMBAY
ORDINARYORIGINALCIVILJURISDICTION
NOTICEOFMOTIONNO.1648OF2007
IN
SUITNO.1253OF2007
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CORAM: S.J.VAZIFDAR,J.
DATEOF
RESERVING
THEJUDGMENT: 23rd
AUGUST,2007
DATEOF
PRONOUNCEMENT: 8THOCTOBER,2007
ORALJUDGMENT:
1.
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the
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pass off such show as being a television game show associated with
and/or authorized by and/or having any connection with the Plaintiff's
game show Titan Antakshari.
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infringing material.
ThePlaintiff'
scase:
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including
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Defendant No.3
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engagement with the Plaintiff was under a contract of service and not
a contract for service.
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contract of service.
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6.
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the exclusive right to reproduce the same and to issue copies of the
works to the public.
7.
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channel
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Hindustan Lever Limited had sponsored the same for its toothpaste
Close Up. The sponsorship continued upto 2002 with only a four
month break in between.
Thereafter the
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8.
Saturdays of every week for half an hour. The Limca Book of Records
states that the Plaintiff''s game show holds a record of being the
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show titled Antakshari and that Defendant No.3 was exploiting the
same on its TV channel Star One. In February, 2007, Defendant
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to licence the same; the Plaintiff has not in fact licenced or assigned
its rights in respect of the game show to any one including the
Defendants and that the Defendants have therefore, infringed the
Plaintiff's said copyrights. The Plaintiff has also alleged that the
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the Plaintiff's television game show passed off their television show
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out the above Notice of Motion for the usual interim reliefs.
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13.
case, also challenged the maintainability of the suit. I will consider the
Defendants' case while dealing each of the submissions raised on
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I).
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III).
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II).
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IV).
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These questions in turn raise subsidiary questions which I will set out
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15.
be necessary for the Plaintiff to further establish that the same was
prepared by Defendant No.1 under a contract of service with the
Plaintiff. This is in view of Section 17(c) of the Copyright Act, 1957,
Provided that
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17.FirstownerofcopyrightSubject to
the provisions of this Act, the author of a work
shall be the first owner of the copyright
therein :
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with
10
Mr.Dwarkadas
submitted that
in determining whether
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19.
control test, the employer's right to control not just what the person
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is to do, but also the manner of his doing it, as an exclusive test to
determine whether the relationship is one of a contract of service or a
contract for service. The Supreme Court has further held that the
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important one. It has further been held that in its application to skilled
and particularly to professional
broken down.
20.
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case of DharangadhraChemicalWorksLtd.v.StateofSaurashtra&
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InspectorofShopsAndEstablishmentAndAnr.,(1974)3SupremeCourt
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Chemical Works, the Court had held that the test of control is not one
of universal application.
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21.
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such as the organization test, the economic test and the integration
test. With the change in
professions,
commerce,
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the nature of
these tests have been held not to be decisive in all cases. There is
no absolute, straight jacket formula. A broader, more complicated
flexible and multiple or pragmatic approach is to be adopted by a
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Thus, in WorkmenofNilgiriCooperativeMarketingSociety
Ltd.versusStateofTamilNadu&Ors., (2004)2,SupremeCourtCases,
514, the Supreme Court held :32.Determination of the vexed questions as
to whether a contract is a contract of service
or contract for service and whether the
employees concerned are employees of the
contractors has never been an easy task. No
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decision of this Court has laid down any hardand-fast rule nor is it possible to do so. The
question in each case has to be answered
having regard to the fact involved therein. No
single test be it control test, be it
organisation or any other test has been held
to be the determinative factor for determining
the jural relationship of employer and
employee.
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........................................................................
In the search for a substitute test, ideas have
been put forward of an integration test i.e.
whether the person was fully integrated into
the employer's concern, or remained apart
from and independent of it. Once again, this is
not now viewed as a sufficient test in itself,
but rather as a potential factor (which may be
useful in allowing a court to take a wider and
more realistic view). The modern approach
has been to abandon the search for a single
test, and instead to take a multiple or
pragmatic approach, weighing upon all the
factors for and against a contract of
employment and determining on which side
the scales eventually settle. Factors which are
usually of importance are as follows the
power to select and dismiss, the direct
payment of some form of remuneration,
deduction of PAYE and national insurance
contributions, the organisation of the
workplace, the supply of tools and materials
(though there can still be a labour-only subcontract) and the economic realities (in
particular who bears the risk of loss and has
the chance of profit and whether the
employee could be said to be in business on
his own account). A further development in
the recent case-law (particularly concerning
atypical employments) has been the idea of
mutuality of obligations as a possible factor
i.e. whether the course of dealings between
the parties demonstrates sufficient such
mutuality for there to be an overall
employment relationship.
(See also Ram Singh v. Union Territory,
Chandigarh (2004) 1 SCC, 126) (emphasis
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supplied)
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In SilverJubileeTailoringHouse&Ors.v.ChiefInspectorof
23.
ShopsandEstablishmentandAnr.,(1974)3SupremeCourtCases,498,
the Supreme Court held :-
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17
It is
neither
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nature of the case. A factor may be relevant in one case but not in
the other.
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the various tests and apply them depending upon their relevance to
the case and to give each of them the weightage warranted by the
nature of the engagement.
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deciding a case not only to apply the appropriate test and the relevant
factors but to accord to each test and each factor its due weightage
depending upon the nature of the business and the nature of the
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engagement/employment.
26.
cannot be applied blindly but, in the context of the business and the
nature of the relationship.
18
In WorkmenofNilgiriCooperativeMarketingSocietyLtd.
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v. State of T.N. & Ors., (2004) 3 Supreme Court Cases, 514, the
Supreme Court held :-
Tests
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In SilverJubileeTailoringHouse&Ors.v.ChiefInspectorof
ShopsAndEstablishmentAndAnr.,(1974)3SupremeCourtCases,498,
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29.
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apply to cases under the Copyright Act was not raised before the
on the basis that the principles did apply to a case under the
Copyright Act.
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32.
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even the Copyright Act, 1911. The concepts have been the subject
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principles
enumerated
in
the
judgments
are
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33.
Hugh Laddie, Peter Prescott and Mary Vitoria under Section 11(2) of
the English Copyright, Designs and Patents Act, 1988. Where a work
is made by an employee in the course of his employment by another
person under a contract of service or apprenticeship that other person
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other laws. It is in fact useful to note that the learned authors quoted
the following passage from the judgment in MarketInvestigationsLtd.
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v.MinisterofSocialSecurity[1973]1AllE.R.,241,atpage253:-
34.
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presumption.
I hasten to add however, that the tests and the factors
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35.
would naturally depend upon the nature of the business and the
36.
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carry the matter further in this regard. The judgments are however
relevant while considering another aspect of this case viz. the
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the matter.
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one purpose such as under the Workmen's Compensation Act but not
so for another purpose such as under the Law of Torts.
In this
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necessary for the purpose of this case to express any final opinion on
this aspect.
38 (A).
576atpage582:
Modernv.SwintonAndPendleburyBoroughCouncil,[1965]1W.L.R.,
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(B).
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(7)
40.
the parties'
relationship;
own
view
of
their
working with the plaintiff with effect from the 23.7.1992 on terms and
conditions purportedly contained in the letter dated the 22.6.1994
28
With
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addressed by the plaintiff to the first defendant. I have used the term
effect from 1.4.1999 the first defendant worked with the plaintiff on the
terms and conditions contained in the letter dated 1.4.1999.
letter dated 1.4.1999
The
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2.
You will not be entitled to any
other company benefits.
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3.
However, conveyance expenses
incurred while on official duty shall be
reimbursed as per company's rules. This
does not include conveyance expenses
incurred while commuting to and fro office &
residence.
4.
You will have to make your own
arrangements for your income tax and other
statutory returns if any as applicable.
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5.
You will be working in an advisory
capacity and put your best efforts in
discharging the jobs assigned to you from
time to time by the Management.
7.
This arrangement will be subject
to your condition that you will be posted
and transferred anywhere in India, or in any
department, office or establishment owned
or managed by the company depending
upon the exigencies of the company's
work. At present, you will be posted in
Bombay.
9.
This arrangement can be
terminated by either party by giving three
months notice of its intentions to do so
before the expiry of the contract period.
10.
Upon termination of your
contract you will return to the Company all
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11.
This arrangement is subject to
your being declared medically fit by our
medical advisors. At the time of joining
you may be asked to.
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appointment was issued almost two years after the first defendant
started working with the plaintiff.
even prior to
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relationship between the plaintiff and the first defendant being one of
a contract for service. The payment of a consolidated amount per
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44.
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45.
of a contract of service.
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indicate and support the plaintiff's case of the relationship being one
Clauses 7, 10 and 11 indicate the
relationship between the plaintiff and the first defendant being one of
a contract of service.
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46.
the master in a
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included as the first defendant was required in the course of his work
to visit different places. He invited my attention to several references
This was not the first defendant's case on affidavit. Even if it were it
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This
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50.
saying that the first defendant was required to advise the plaintiff
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his advice.
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medically fit.
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There is no
justification to read some clauses with one approach and the other
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defendant's case at the highest is that the same read in isolation and
removed from the other facts and circumstances which I shall now
refer to tilts the balance in favour of the relationship between the
plaintiff and the first defendant being one of a contract for service.
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construction of sets.
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(B).
show Antakshari. The first defendant has in his affidavit in reply stated
that he appended his signature only to confirm the expenses for which
It is true as contended by him, that his is
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not the only signature in the place specified for the authorised
Dr.Tulzapurkar
placed
strong
reliance
on
the
TDS
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inclined to the view that the relationship between the plaintiff and the
first defendant is one of a contract for service. The matter however
58.
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that this fact is sufficient in itself to hold that there was a contract for
service and nothing further ought
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the income tax and wealth tax returns. The learned Judge held that
the returns were not admissible in evidence under Sections 40 to 42
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B)
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Anr.v.ShriHariPadaRoy&Ors.,,1997(5)L.J.Soft,177=
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1996, Supreme Court, 941 where it is held that once the admission is
proved the burden shifts on the maker thereof to explain the
circumstances under which the same was made.
What a party
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be established.
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C)
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D)
59.
relied
upon
Dr.Tulzapurkar
letters
dated
20.4.1994,
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thereby that the parties were conscious of and had drawn a distinction
between the nature of the relationship prior to and with effect from 1st
April 1999. This fact too read in conjunction with the above facts
supports the Defendants case.
60.
and indeed indicate clearly that the relationship between the plaintiff
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and the first defendant even prior to 1 April 1999 was that of a
61.
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indicates that even according to the parties the first defendant had a
career in the plaintiff and not as a consultant unconnected with the
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plaintiff.
62(A).
fact. The first defendant had throughout been placed in a grade in the
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in its letters dated 13.5.1995 and 2.4.1997 expressly stated that the
same was in Grade M-5 and Grade M-6.
If the first defendant was merely a consultant there would
be no question of having placed him in a regular grade like every
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(B).
nothing
on
record
which
even
remotely
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There
63(A).
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been revised.
I will
However what
followed is important. The plaintiff stated :Company is also pleased to elevate you in
the company's Grade M-6. (emphasis
supplied)
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Tulzapurkar's suggestion.
Dr.
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extremely strong indication that the first defendant was a part of the
organisational setup of the plaintiff and not merely an external
consultant.
thereof.
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(B).
dated the 14.6.2007 the first defendant specifically deals with Exhibits
B1, B2 and B4, he does not deal with or even refer to the letter
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importance to such publications had they not been relied upon by the
first defendant himself. He stated:-
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44
65.
66.
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detail.
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did not consider himself as having been given a grade merely for the
purpose of establishing the level of perks as suggested by Dr.
Tulzapurkar. He considered it as establishing his standing in the
organisation as well as establishing the level of perks......
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67(A).
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may have been filled in with a view to enable the plaintiff to decide
whether or not the first defendant ought to be continued and if so
(C).
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the
company
itself
of
its
consultant's
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the purpose
performance.
However the nature of this form clearly indicates that it is used for the
employees of the plaintiff generally. It is not the first defendant's case
that this form was specially printed or prepared only for consultants or
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68.
Tulzapurkar the assessment would only have been by the plaintiff and
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To
COMMUNIQUE
:
Mr.Raana J P Singh
Gajendra Singh
Date : 15 September
1997
From
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47
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I have also been given the grade of M-6 by Mr. Vijay Jindal. I am sure
this is to establish my standing in the organisation as well as
establishing the level of perks that would accrue to me.
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Regards,
Sd/-
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Gajendra Singh
CC
Vijay Jindal
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71(A).
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Regards,
Sd/-
offered no explanation for the first sentence in this letter despite the
fact that it quite obviously was pressed into service with great
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paper.
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bound as an employee, was that he did not wish to tie himself down
and wanted to be free to do work for other channels; that however, as
the nature of his engagement with the Plaintiff, did not leave him time
to follow any other pursuits he thought it fit that the Plaintiff should
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It is
for his having stated in the said letter dated 17.9.1997 that he had
been appointed as a consultant on paper and for reasons, other
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It dilutes, if not,
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18.6.2007 yet again stressed the point that in the said letter the first
Defendant himself had stated that he was a consultant only on
paper.
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a consultant was only on paper and that the same was for reasons
other than a simple consultancy assignment. These words clearly
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indicate that there was more to the letter dated 22.6.1994 in so far as
it referred to the first defendant being appointed as a consultant. The
first defendant has chosen not to offer any explanation for his choice
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74.
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75(A).
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(B).
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them.
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and Marathi serials and craved leave to refer to and rely upon
In paragraph 9 of its affidavit dated 30.4.2007, the
Plaintiff put the first Defendant to the strict proof of his averment
and stated that the same were made prior to the first Defendant
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Yet again, in
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himself states that during the ten years since his joining the
Plaintiff in 1992, he had been working fifteen to sixteen hours
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not deny the specific averment that he had been working with
the Plaintiff alone and had no time to independently work with
other serials.
76.
53
He
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submitted that the relationship thus far between the first defendant
and the plaintiff was one of a contract for service and that is why the
first defendant had requested the plaintiff to provide him all other
facilities that accrue to an employee.
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77.
the letter as a whole, in the context of all the facts and in reading it out
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It must be read in the context of the entire letter and all the other facts
and circumstances which I have referred to earlier. So read I think it
is clear that what the first defendant suggested was that his
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78.
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79.
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necessarily follow that the letter dated 22.6.1994 therefore, does not
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places the first Defendant in Grade M-6. As stated above, the first
Defendant was almost from inception placed in the regular grades of
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the Plaintiff.
letters of appointment.
81.
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I will therefore
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constitute the property of the plaintiff and that the first defendant
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admitted that prior to 1.4.1999 it had not shown the first Defendant as
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furnished. He further submitted that the Plaintiff had not indicated any
control having been exercised over the first Defendant.
84.
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The first Defendant's own case is that he was responsible for the
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Plaintiff did not have the authority to reject his work or to order any
modification therein. It is interesting to note that in the first sentence
of paragraph 20 of the written submissions filed on behalf of the first
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even if the Plaintiff had not established control, it would not have
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relevant factors are the traditional structure of the trade, the incidence
of tax and National Insurance and how the parties viewed their
relationship and that the other factors are irrelevant. I have however
dealt with the aspect of how the parties viewed their relationship and
have come to a conclusion in the Plaintiff's favour.
In the circumstances, I do find that there are factors in the
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87.
present case which support the case of the relationship between the
Plaintiff and the first Defendant as being a contract of service as well
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88.
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59
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Antakshari
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Concept
Antakshari
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:Malehost/FemaleHost
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Host
89.
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on record.
produce the original concept note, the Plaintiff relied upon a computer
print out of the same. Indeed, a computer print out would suffice for
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writing.
91.
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This was
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92.
joining the Plaintiff. In any event, there is nothing to show that the
same was forwarded to Doordarshan while he was in the employment
of the Plaintiff.
93.
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is that the first Defendant has not indicated any other material which
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94.
establish the existence of the concept note on which it has based its
case for infringement of the artistic work. Despite the aforesaid strong
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I must
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trial.
95.
creation of the concept note. There is nothing which even shows the
work which preceded or was preparatory to the concept note.
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96.
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record. It is referred to for the first time only in the plaint. It was not
even referred to in the correspondence which preceded the plaint.
97.
Defendant regarding the concept note, the Plaintiff has not adduced
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any evidence which led to the concept note being stored in the
would be nothing unusual about the concept note having been stored
in the Plaintiff's computer.
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However, the Plaintiff has not even relied upon the relevant
folder/file in its computer which would in all probability, contain a date
on which the file was created.
Mr.Dwarkadas relied upon an affidavit dated 30.4.2007 of
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98.
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further states that the concept note was prepared in consultation with
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he states that the concept note was worked upon on a computer and
that Exhibit G is the printout of the said concept note.
99.
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Shendye. There was no reply to the letter. The Plaintiffs did not
supply the material.
100.
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episode and was involved in erecting the entire set for the game
show. He further states that the said Shendye was the Light Godown
Incharge during his tenure and was not in any manner connected with
the programming team of the game show or that any team which
65
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could have prepared the concept note. He further states that the said
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Shendye used to sit at the studio where the Plaintiff had a godown
which was used to keep the lighting equipment and that his job was
to send lighting assessories as and when asked for.
101.
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Santosh Shendye in 1994 and was not associated with him in any
manner whatsoever before that.
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102.
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complete his personal file. The memo was copied to one Subodh
Lal.
Subodh Lal has handwritten a representation to him by
Santosh Shendye. This endorsement, even if it does not support the
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it far from establishes the Plaintiff's case regarding the concept note.
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case here that he was working with the Antakshari unit when the
concept note was alleged to have been made.
Shendye had been working with the Antakshari unit on the production
site. The document is dated 20.12.1994. Thus, as per Shendye's
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own statement, he worked with the Antakshari unit only over a year
prior to 20.12.1994.
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allegedly prepared.
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His affidavit is
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document does not establish the Plaintiff's case regarding the concept
note and/or Santosh Shendye's involvement therein.
I realise that the first Defendant has exhibited an
103.
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He ought really to
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not to change the statement where it was written that he knew him
since 1992 because Shendye represented that if he did so, he will not
get his salary revised. There is however no such statement in the
document.
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104.
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105.
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force.
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first Defendant expressly stated that the Plaintiff had failed to state the
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18.6.2007 merely stated that the same was irrelevant. Nilesh Mekal,
who verified the plaint and filed the said affidavit, admittedly was not
He admittedly also has no personal
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plaint on information and belief and on the basis of the records and
not on the basis of personal knowledge.
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106.
In these
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details. The least that must be said in favour of the first Defendant is
rejecting
or
disregarding
Dr.Tulzapurkar's
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that the Plaintiff's refusal to do so, would not justify the Court in
submission
at
the
drawn against the Plaintiff to the effect that there was in fact no such
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107.
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November, 1992. This is further aggravated by the fact that the said
details were not provided despite the fact that in paragraph 3 of his
affidavit in reply dated 14.6.2007, the first Defendant questioned the
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The first Defendant has also stated that in the credits to the
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109.
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concept note.
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the concept note was established, the Plaintiffs has not established its
copyright therein as the Plaintiff had not mentioned the names of the
other persons viz. the other senior employees and programming team
of the Plaintiff who originated/prepared the same along with the first
Defendant, as alleged in paragraph 12 of the plaint. He submitted
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that as all the authors of the concept note are not mentioned in the
plaint, the Plaintiff has also failed to establish that they were involved
in the preparation of the concept note as employees of the Plaintiff or
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that they created the work in the course of their employment with the
Plaintiff. He submitted that the Plaintiff having taken up the plea that
the work was created by the team, posits that there were joint
authors. It therefore cannot establish the ownership to Exhibit G by
proving that only one of the co-authors viz. the first Defendant was in
their employment.
72
rt
C
ou
ig
h
ba
y
111(A).
om
C
ou
rt
73
the Plaintiff who originated the format of the television game show. It
employees.
ig
h
was not necessary for the Plaintiff to mention the names of its
If these averments were admitted in the written
ba
y
to mention the
om
(B).
21).
ownership of copyright since it was not stated who the author was.
The Division Bench noted that in paragraph 2 of the plaint it was
74
rt
stated that the concept was originated by Plaintiff No.2 together with
C
ou
ig
h
who the author of the work was and in whom the authorship of the
original work vests.
112.
ba
y
In the
om
cause of action as the Plaintiff has failed to plead and prove that there
was no contract to the contrary. He based the submission on Section
17(c) of the Copyright Act.
114.
75
rt
that subject to the provisions of the Act, the author of the work shall
C
ou
not apply, the employer shall, in the absence of any agreement to the
ig
h
law, person who claims the benefit of an exception must prove that
his case falls within the ambit thereof. This is well established. The
ba
y
om
invest it with the ownership of the copyright of the work created by the
employee. The same would however be subject to a contract to the
contrary which the Defendants must establish. Further, the Plaintiff
cannot be expected to prove the negative. The party relying upon the
76
rt
C
ou
ig
h
ba
y
om
It appears to be an expression
It would be
77
rt
C
ou
116.
Ltd.&Ors.,2003(5)Bom.C.R.,404=2003(4)L.J.Soft,5 is well
founded.
ig
h
117.
Dr.
copyright.
ba
y
118.
there was no novelty in it and, therefore, did not pass the test of
om
Re:IV) Whetherthebreachofacopyrightin
afilm can becommittedonlyby
duplicatingthefilmitself?
119.
78
rt
C
ou
ig
h
Nor is there any dispute about the fact that the Plaintiff is entitled to
protection of its copyrights therein.
120.
any
infringement
of
copyright
of
the
Plaintiff's
ba
y
question
cinematographic film.
om
79
rt
C
ou
ig
h
(4)L.J.Soft,124=(2003)2B.C.R.,655.
ba
y
The Plaintiffs
om
It was contended
members of the public at large that they had been authorised to make
use of the original artistic, literary, musical and cinematographic work
for merchandising their product. The Plaintiff claimed various reliefs
on the basis of
80
C
ou
rt
om
ba
y
ig
h
5.
The first question, therefore, that
requires consideration is whether the
defendants' commercial is a copy of the
plaintiffs' TV serial? The case of the plaintiffs
has been that as owners of the copyright in
the film and considering section 14(d)(i) of the
Copyright Act, the plaintiffs, as the owners of
the copyright in the film, have an exclusive
right to make a copy of the film including a
photograph of any image forming part
thereof. It is contended that unlike the U.K.
and Australia Copyright Acts, the word 'copy'
is not defined in the Indian Copyright Act and,
therefore, recourse must be had to the
technical meaning of the word 'copy'.
Reference is placed on the Oxford English
Dictionary and Random House Dictionary of
the English Language as to the meaning of
the word 'copy'. It is then contended that the
definition of 'infringing copy' is contained in
section 2(m)(ii) of the Act. Hence, imitating
the film or making another film which bears
likeness or striking resemblance to a
copyrighted film would amount to making a
copy of the film and, therefore, infringement
of the copyright in the film. Assuming that to
establish infringement, copyright should be of
a substantial part of the plaintiffs' film, the test
of substantiality must be from the point of
view of the infringing work. It is, therefore, the
duty of the Court to ascertain whether a
substantial part of the defendants' work
consists of a copy of the plaintiffs' work.
Reliance is placed on the judgment of the
ig
h
C
ou
rt
81
om
ba
y
om
ba
y
ig
h
C
ou
rt
82
C
ou
rt
83
ig
h
6.
It is, therefore, necessary to deal
with the submissions as to whether the
commercial film made by the defendants is a
copy of the plaintiffs' film. Firstly, let me refer
to the meaning of the word 'copy' as set out
in the Oxford English Dictionary which
defines the word 'copy' as under :
om
ba
y
ig
h
C
ou
rt
84
om
ba
y
(ii)inrelationtoacinematographicfilm,a
copyofthefilmmadeonanymedium
byanymeans."
Section 14 of the Copyright Act,
1957 for the purpose of the Act defines
'copyright' to mean the exclusive right
subject to the provisions of the Act, to do or
authorize the doing of any of the following
acts in respect of a work or any substantial
part thereof, namely:"(d) in the case of a cinematograph film:
(i) to make a copy of the film, including
a photograph of any image forming part
thereof;
(ii) to sell or give on hire, or offer for
sale or hire, any copy of film,
regardless of whether such copy has
been sold or given on hire on earlier
85
C
ou
rt
occasions;
ig
h
om
ba
y
ig
h
C
ou
rt
86
om
ba
y
ig
h
C
ou
rt
87
122.
ba
y
........................................................................
......................................................................
om
The
judgment
certainly
supports
the
extreme
ig
h
123.
C
ou
7.
Then the issue to be addressed is
whether there is substantial copying which
would give rise to a cause of action to the
plaintiffs. At this prima facie stage once the
view is taken that the defendants film is not a
copy of the plaintiff's film it really would not
require that this second submission be
considered.
rt
88
124.
125.
ba
y
om
it would have made any difference even if it was. The learned Judge
came to the conclusion based on his interpretation of the provisions
of the Copyright Act, 1957. The binding effect of the judgment would
not be affected merely because certain provisions may not have been
referred to.
Anand v. M/s. Delux Films and others, A.I.R. 1978 S.C. 1613 was referred
89
rt
C
ou
PicturesAssociation&Ors.,(1977)2SupremeCourtCases,820.
ig
h
127.
ba
y
licence
or
permission
om
cinematographic film.
to
an
author/owner
of
90
rt
C
ou
128.
StarIndiaPvt.Ltd.v.LeoBurnett(India)Pvt.Ltd.,2003(4)L.J.Soft,
124=(2003)2B.C.R.,655.
ig
h
129.
130.
ba
y
do not for a moment suggest that the submissions made by him are
om
91
rt
131.
C
ou
LeoBurnett(India)Pvt.Ltd.
132.
ig
h
133.
ba
y
Re:V) WhetherthePlaintiffhasestablished
that the Defendants are guilty
of
passingofftheirgameshowasthat
ofthePlaintiff'
sgameshow?
This brings me to the Plaintiff's case of passing off. The
om
content and presentation of its television game show and that the
Defendants game shows constitute passing off
broadcasting thereof
inherently tantamounts
the Defendants
misrepresenting to the members of the public and the trade that they
are associated with the Plaintiff. The misrepresentation on the part of
the Defendants, in making
92
rt
Antakshari',
C
ou
have
ig
h
the Plaintiff contends that the Defendants by their aforesaid acts are
also indulging in unfair competition. The Plaintiff therefore submits
ba
y
om
93
rt
C
ou
om
ba
y
ig
h
C
ou
135.
rt
94
ig
h
136.
type with which this case is concerned, no question of passing off can
arise as there is no pre-determined work or programme; in each
ba
y
om
action cannot lie in the case of the reality show or in the case of a
serial which involves the spontaneous participation and interaction of
95
rt
C
ou
ig
h
138.
of such shows, must necessarily depend upon the facts of each case.
It is impossible to devise any formula for determining whether the
139.
ba
y
enumerated exhaustively.
For instance, if the programme consisted of a simple music
om
them and the winners of each show would then participate in the next
show and so on, till the final round, it would be difficult to maintain a
96
rt
C
ou
In AnilGupta&Anr.v.GunalDasGupta&Ors.,97(2002)
140.
ig
h
Delhi Law Times, 257, a learned Single Judge held that copyright
could exist in respect of a reality show. The learned Judge held that if
ba
y
granted the reliefs based on the findings that there was in fact novelty
in the said show. The learned Judge held that the Plaintiffs was a
novel concept original in thought and was therefore capable of being
om
protected.
141.
97
Defendant No.3
rt
C
ou
game show, which has made it original and different and distinct from
ig
h
ba
y
om
143.
incumbent upon the Plaintiff to identify precisely the work the Plaintiff
seeks to protect against the tort of passing off. The Plaintiff had not
identified which work or film or episode of the Plaintiff's show is to be
98
rt
C
ou
was also submitted that the Plaintiff had failed to identify the work
which according to it, the Defendants were guilty of passing off. It
was also submitted that on the Plaintiff's admission in paragraph 15 of
ig
h
the plaint, the Plaintiff's game-show had changed from time to time.
of its game-show with the third
reputation/goodwill.
ba
y
144.
om
99
146.
C
ou
rt
ig
h
ba
y
om
147.
100
rt
C
ou
ig
h
15. The
television
game
show
`Sansui
Antakshari' ceased to be on-air with effect
from 17th June, 2005 on the Plaintiff's
channel. Thereafter, with effect from 5th
January 2007, the Plaintiff re-started the
television game show as `Titan Antakshari'
and the same continues on Fridays and
Saturdays of every week. The programme is
for one-half hour. Over a period of time, the
Plaintiff's television game show `Antakshari'
has consisted of various rounds, which have
been changed with time. The details and
format of the television game show broadcast
by the Plaintiff over a period of time, are given
hereinabelow :
ba
y
148.
game-show which was telecast upto 17th June, 2005 re-started with
effect from 5th January, 2007.
om
Thus,
101
rt
C
ou
whereof the Plaintiff has sought protection. Any doubt in this regard
is set at rest by the fact that in the affidavits filed on behalf of the
Defendants, it is in fact contended that there was no similarity
between the Plaintiff's work and the Defendant's work.
Indeed, the
ig
h
ba
y
150.
om
151.
102
rt
C
ou
have gone to the extent of alleging that the Plaintiff has developed no
ig
h
upon by the first Defendant establish the sheer falsity of this denial.
153.
ba
y
The Plaintiff's programme started on its TV Channel ZeeTV under the caption `Close Up Antakshari' in September, 2003, as
it was sponsored by Hindustan Lever Limited for its toothpaste Close-
om
Up. It was so telecast upto the year 2002 with a four month break in
between. Thereafter the sponsor changed and the same show was
103
rt
C
ou
NationalRecord
154.
ba
y
ig
h
will
now
refer
to
the
first
Defendant's
own
om
104
rt
GAJENDRASINGH
C
ou
following
ig
h
The
dream
which
I
saw
completed....... .................................................
........................
om
ba
y
C
ou
rt
105
ba
y
ig
h
om
In these which
appreciated much ? I asked
episode
was
ig
h
C
ou
rt
106
.........................................................................
What now after Antakshari and
SAREGAMA I asked
om
ba
y
156.
It is
an
107
C
ou
rt
made it big.
ig
h
ba
y
157.
reputation developed by the Plaintiff over the last fourteen years in its
television game show.
om
108
rt
159.
C
ou
ig
h
same.
160.
being confused in view of the fact that the Plaintiff and the third
ba
y
om
viewers would not be aware of the channel they are watching. That
this is so follows from more than just the fact that each broadcasting
109
rt
C
ou
normally be expected to note the day and time when the same are
telecast. If I am right, such a viewer, while accessing the show at a
particular time, would of necessity be
television channel to be accessed.
ig
h
channel.
ba
y
161.
It is not that a
om
The question
therefore is whether viewers think or are likely to think that the Plaintiff
is associated with the programme being telecast by the third
Defendant or has permitted the same or that a programme though
110
rt
C
ou
the Plaintiff.
ig
h
om
ba
y
C
ou
rt
111
(B).
ig
h
ProductsLtd.v.BordenInc.&Ors.,(1990)13RPC,341at377, relied
Dr. Tulzapurkar relied upon the
Slade LJ. in
ba
y
om
112
C
ou
rt
ig
h
document, had not denied the contents of the same. This would not
be a fair approach to the matter. Defendant No.1 relied upon the
ba
y
om
164(A).
a
prominent
daily
newspaper
The
Hindu,
to
establish
C
ou
rt
113
ig
h
(B).
ba
y
deception.
The
om
114
C
ou
rt
game-shows.
centuries old.
ig
h
(C).
the concept `Antakshari' is also evident from the statement that the
ba
y
third Defendant's show in its new avatar will see new inclusions to
the format.
sentence.
om
implying thereby that the show had an old/earlier `avatar'. That could
115
rt
format. In the facts of this case that could only be a reference to the
C
ou
Plaintiff's format. In any event, it is not the Defendant's case that the
references were to any other show or work or to the historical
concepts of Antakshari.
165(A).
ig
h
Backtohisbest
ANUJ KUMAR
om
ba
y
C
ou
rt
116
ig
h
(B).
(C ).
ba
y
om
important is the statement that Annu Kapoor is back with his career-
best show Antakshari, this time on Star TV. Two suggestions are
obvious and clear from this.
Firstly, that Annu Kapoor is back with the Plaintiff's show
which was the best show of his career. It is not the Respondents
case that Annu Kapoor had anchored or was concerned with another
117
rt
similar show. In any event, there is no other similar show that he was
C
ou
connected with which was considered as the best show of his career.
The suggestion clearly is that the show that Annu Kapoor is back
ig
h
never have been stated that Annu Kapoor is back with his careerbest show.
(D).
ba
y
important to note that it is of the show. The reference in the last two
om
(E).
sentence : of his previous partners when the show was on Zee TV,
Annu says .............................
partners in the show when it was on Zee TV, indicating that the
118
rt
C
ou
ig
h
shows and at the very least that it was connected with the Plaintiff's
show and that the Plaintiff was associated with or had permitted it.
that the
ba
y
om
167.
material from any third party has been placed on record to show that
the third Defendant's programme is associated with the Plaintiff, is
therefore rejected.
119
C
ou
programme is
rt
has supported the third Defendant throughout the hearing. The third
Defendant has not controverted a single statement made by the first
ig
h
The Defendants
ba
y
om
169.
third Defendant that the press reports relied upon by the Plaintiffs,
120
rt
cannot and do not show that either the press independently or the
C
ou
170.
ig
h
ba
y
om
sketch entitled The New Car which was performed under licence
121
rt
comedian who played the chief part in the Plaintiff's sketch was also
C
ou
featured in the Defendant's film. It was admitted that the film was
different from the sketch and that it was impossible to suggest that it
infringed in any respect the copyright of the sketch.
The
Plaintiff
alleged
that
the
Defendants
issued
ig
h
members of the public into belief that the laudatory notices in the
press in respect of the performances, based on the Plaintiff's sketch
ba
y
on behalf of the
om
Defendant's attempt was to pretend that their sketch was the same as
the Plaintiff's sketch which had made Their Majesties the Queen
122
rt
laugh.
C
ou
ig
h
their production was a film version of the Plaintiff's sketch and that the
ba
y
om
property. His Lordship based his judgment also on the ground that
the Plaintiff was entitled to a copyright. Romer L. J. has no doubt
observed that there had been no passing off in the sense in which
the word passing off is used in what is popularly known as passing
123
rt
off actions. It is further observed that the cases in which the Court
C
ou
has restrained passing off in the popular and usual sense are
instance of a mere application by the Court of a much wider principle
ig
h
Lordship's judgment where His Lordship has agreed with, all that has
fallen from the Master of the Rolls and Lawrence L. J.; both of whom
held that there was a case of passing off.
However, the Plaintiff's case does not end with the
ba
y
171.
om
124
Plaintiff's
rt
C
ou
ig
h
changing but Defendant No.1 and Annu Kapur were virtually fixtures
in their respective capacities in the Plaintiff's game-shows.
In the said article Games People Play relied upon by the
ba
y
om
it would not affect Annu Kapur. The first Defendant further stated :I just can't begin to describe his contribution
to the show. With him we don't have to give
any kind of script..........
his affidavit dated 24.4.2007 (Exhibit D), the first Defendant stated:In fact, according to t.v. Ratings, Annu's
fantastic performance as the host had taken
`Antakshari's popularity
soaring skyhigh. ...............................................................
125
rt
.......
C
ou
(B).
ig
h
word Antakshari.
ba
y
om
suggest that this by itself affords any support to the Plaintiff's case of
misrepresentation. It is only one factor which when viewed with the
The record
126
rt
175.
C
ou
upon by the first Defendant discloses that he himself had stated that
one of the game-shows was unsuccessful and had virtually no
viewership.
ig
h
show titled KAUN JEETA KAUN HAARA before the Plaintiff's show.
He further stated that similar game shows had also been aired by
ba
y
ANTAKSHARI;
by
Doordarshan
titled
PICNIK
om
127
rt
178.
C
ou
the first Defendant's said affidavit, the Plaintiff expressly referred to its
ig
h
the said programmes had been telecast and the episodes where the
similar rounds were played. The first Defendant was also called upon
to furnish a CD of the alleged programmes. In the said affidavit, the
Plaintiff has specifically stated that the said information sought had
ba
y
It is important to note that Defendant No.1 filed a surrejoinder to the Plaintiff's affidavit dated 30.4.2007.
The first
Defendant has not only not denied the contents of paragraph 3 of the
om
Plaintiff's said affidavit, but has not even referred to the said
paragraph.
179.
128
rt
C
ou
180.
ig
h
ba
y
Plaintiff's game show. Despite the same, the third Defendant has not
furnished any material whatsoever to establish its contention.
No
om
in this regard.
181.
This
Plaintiff's
game
129
rt
C
ou
Both in the affidavit in rejoinder and during the argument before me, it
was submitted that even this table indicates the similarity between the
two shows.
182.
ig
h
BROADDIFFERENCEBETWEENTHEPLAINTIFF'
SAND
DEFENDANTNO.3'
SANTAKSHARI
ba
y
Plaintiff's Antakshari
Nameofteams:Threeteamsviz.Deewane,Parwaane,Mastane
Defendant's Antakshari
om
Nameofteams:Fourteamsviz.West(WestKaMaan),North
(NorthKiShaan)Central(CentralKiJaan),East(EastKiAan)
Host :
Plaintiff's Antakshari
Defendant's Antakshari
Annu Kapoor & Juhi Parmar
Round1:
Timeismoney
Plaintiff's Antakshari :
rt
130
C
ou
ig
h
DAY1
ba
y
Plaintiff's Antakshari :
om
Defendant's Antakshari
Round2:HeraFeriBuzzer Rounds
The song visual and the audio played are of two different songs.
The team has to identify the correct song displayed on the screen.
The team who presses the buzzer first gets opportunity to identify
131
rt
C
ou
Host then asks the other teams if they have any objection to the
song sung by the team. If no objection is raised, the team
identifying and singing the song gets 10 full points. If correct
objection is raised 10 points are lost. If objection is correct, the
objecting team gets 10 points. But if objection is wrong the
objecting team loses 15 points. Any team can object any
number of times.
ig
h
Plaintiff's Antakshari :
Round3:AntaraMukhdaBuzzer Round
ba
y
Defendant's Antakshari
Round3:MaiHoonNaaBuzzer Round
om
Three tunes are played continuously one after the other. The
contestant who presses the buzzer and sings correct Mukhdasa
of the tunes scores in this round.
Defendant's Antakshari
Round4:HumDumSunioReBuzzer rounds
rt
132
C
ou
ig
h
ba
y
Teamscoringleastpointsonday1iseliminatedattheend
oftheepisode.Thus,threeteamsplayonday2.
Plaintiff's Antakshari :
Round5:BadalteSitareBuzzerRounds
om
133
C
ou
rt
person from that pair with another artiste. The next team then
has to pick one of the actor/actress from the earlier paid and
sing a song picturized on that actor/actress with any other
actor/actress, but without repeating the connecting
actor/actress. This continues for two cycles. If a team fails to
sing a song, the next team takes from the couple left.
Plaintiff's Antakshari :
Round6:DumbCharadesBuzzer Round
ig
h
Defendant's Antakshari
Round6:BabuSamajhoIshareNot a buzzer round
om
ba
y
134
Plaintiff's Antakshari :
Nosuchround
ig
h
Defendant's Antakshari
Round8:LooseControl
C
ou
rt
The compere asks the team to sing a song of its choice. After
the team finishes the Mukhda of the song, the compere asks
three questions related with that song. 10 points are given for
each correct answer. Any team knowing the answer can press
the buzzer, answer the questions and win points.
ba
y
Teamscoringleastpointsonday2iseliminatedattheend
oftheepisode.Thus,twoteamsplayonday3infinalround.
Plaintiff's Antakshari :
Round7:ThemeRound
om
135
C
ou
rt
Plaintiff's Antakshari :
Round8:TringTringRounds
ig
h
ba
y
om
Plaintiff's Antakshari
Round9:VisualRoundsBuzzer Rounds
136
C
ou
rt
ig
h
Plaintiff's Antakshari
Round10:MixedBagDhun/DhunRoundBuzzer Round
ba
y
om
Five dhuns are played by the musicians and the teams have
to guess the song of which dhun is played. The team which
presses the buzzer first and sings the song correctly wins 20
points out of which 10 points are from the opponent's account.
If the team presses the buzzer but fails to sing the song, it
loses 20 points.
183.
There
are
no
doubt
differences
between
the
two
137
rt
C
ou
ig
h
and manner of testing the same and whether there is any novelty in
the manner in which such tests are conducted by means of a
television game show.
184.
ba
y
om
185.
in almost every household and school. However, the only form of the
game that my attention was invited to was where the last word of the
song is the cue for a person/contestant to sing another verse from the
song.
My attention was not invited to anything which suggested
138
rt
that each of the rounds was in public domain or was a well known
C
ou
form or concept and had already been the subject matter of previous
idea viz. the test of a person's knowledge and memory of Hindi film
ig
h
It has not
limited its exercise of judgment and skill only to the traditionally wellknown method of requiring a person to sing a song starting with the
What the
ba
y
Defendants have copied therefore is not the mere general idea, not
the well-known concept, but the Plaintiff's novel presentation and
om
As
139
rt
C
ou
ig
h
ba
y
No.9 and the Plaintiff's round No.10 and the Defendant's round
No.12.
188.
om
140
rt
Defendant that the third Defendant's game shows are nothing but a
C
ou
a fact
ig
h
any event, the burden then shifts on the person making the
misrepresentation to establish that the misrepresentation will have no
190.
ba
y
adverse effect on the other party or will not serve the purpose.
I would presume that the Defendants themselves believed
that the nature of the two shows are such that by their
om
Once
141
rt
C
ou
shows,
see
no
warrant
for
presuming
that
the
In other
ig
h
I have
192.
ba
y
I have viewed
om
words, the shows are not so different that the viewers would not be
142
rt
similar and the most prominent features of the shows being common,
C
ou
ig
h
Defendant are that the Plaintiff's show has ten rounds whereas the
third Defendant's show has twelve rounds; that the names of the
rounds in both the shows are different; that the criteria for awarding
points are different; that the hosts are different; that the zones have
ba
y
different names; that the said sets and presentation of the shows are
visually different; that the scripts are different and that the title songs
of both the game shows are different. The differences mentioned in
om
recorded to have said in article Games People Play; Even now you
will find that every time there's something new in this programme, but
the original concept remains the same. We keep planning for the
future, to see how we can change and give better adaptations to the
143
rt
C
ou
ig
h
194.
ba
y
om
195.
144
rt
anchor for the third Defendant's show and the first Defendant has
C
ou
been engaged by the third Defendant for its show, would not by itself
be conclusive of the matter. Surely, they cannot be deprived of their
ig
h
have a right to pass off the third Defendant's show as that of the
Plaintiffs.
196.
ba
y
om
145
rt
C
ou
ig
h
the Appeal from the order of the learned Single Judge granting an adinterim injunction, which was not limited for any duration, the Division
ba
y
Bench did not limit the duration either. To curtail the duration of an
injunction where a Plaintiff has made out a case of breach of
copyright or of passing off, would defeat the rights of the Plaintiff
om
altogether.
197.